Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1887-03-05
The Receiver presented a petition asking for

by the provisions above referred TO-
THE COURTS CONCLUSIVE OPINION.
Said the learned and able Judge who deliv-
cred the opinion of the Court.
As to the matter of long and short hauls the
question, although prtEnd fuefe one of discrimi-
nation, directly involves the right to reason
able compensation. | assume that the State has
the power to prevent a railway company from
discriminating between persons and places for
the sake OF putting one up Or another down, or
any other reason than the real exigencies of its
business Such discrimination, II seems to me-
is a waIton injustice and may therefore be pro-
hibited. 1t violates the fundamental maxim
which, in effect, torbids any one to so use his
property as to injure anOther-sic mere t,to ut
diiesum non laedds. The provisions of the Act
that have condensed ia paragraphs 3, A and
aforesaid, are intended TO prevent this practice.
But where the discrimina'i ion is between
places only, and is the T. suit of competition
with other lines or means of transportation, the
case, think, is different For instance, the
Act prescribes a reasonable rate for carrying
freight between Corvallis and Portland, or
from either, to points intermediate thereto.
But Corvallis is on the river, and has the adj
vantage Of water transportation for some
montDs in the year The carriage of goods by
water usually costs less than by land. and as
water craft are allowed 10 carry at rate less
than the maximum fixed for the railway, they
will get all the freight from this point unless the
latter is allowed to compete for it. But if, TO do
this. il must adopt the water rate for all the
points intermediate between Portland and Cor
wallis, where there is no such competition, it is
in effect required TO carry freight to and from
such points at less rate than that which the
Legislature has declared TO be reasonable, or
else give up the business of Corvallis altogether.
And the same result would follow as to Salem
and other points on the east and west side
lines, where there Is convenient access to water
transportation.
If the Legislature cannot require railway
corporation formed under the laws of the State
to carry freight for nothing, or at any less rate
than reasonable one, then it necessarily follows
that this provision of the Act cannot be enforced
so far as to prevent the railway from competing
with the water craft at Corvallis and other sim
ilary situated points even if in so doing they are
compelled to charge less for long haul than
for short one in the same direction. 1t IS not
the fault or coutrivance ofthe railway that com
pels this discrimination. but it is the necessary
result ef circumstances altogether beyond
its control. 1t is not done wantonly, for
the purpose of putting the one place up
or the other down, bit only to maintain its
business against rival and competing lines of
transportation. In other words, the matter, so
far as the railway is concerned, resolves itself
into choice of evils. 1t must either compete
with the boats duIing the season of water trans
portation, and carry freight below what the Leg
isature has declared TO be a reasonable rate,
or abandon the field and letits road go to rust.
Nor can the shipper a. the non-competing
point or over the short haul complain so long as
his goods are carried at a reasonable rate. II
is not the fault of the railway that the shipper
who does business at competing point has the
which he nlGst submit 70. unless the Legisla
ture viii undertake 70 equalize the matter by
prohibiting the carriage OF goods by water for
less rate than by rail and when this is done.
the inequalities uf distance as well as place.
may also H. overcome by requiring goods 10
pay the same rsre over short haul as long
ore. and then the shipper al Ashland will be as
near the market u siy one
CONCLUSIONS vNDEE THE Asoss DEclsIos-THE
Law or ooNarEK E.
For the reasons above given and for the rea-
sons stated in the decision above quoted, I am
of the opinion tha. under the Act in question,
there is no absolute prohibition against chaTg
ing more for short than for long haul in the
same objection, the shorter being included in
the longer distance. The leading question will
always be whether the rate charged is just and
reasonable and made without any undue or I'M
just determinations against any person OF local
ity or without unreasonable preference or ad-
vantage in favor of any person or locality.
This is the law of commerce Itself Commerce
makes no invidious determinations between
persons or places. Those engaged in commerce
may do otherwise. Commerce gives no undue
or unreasonable preference as TO persons ,,laces
or traffic. Those engaged in commerce may do
otherwise Commerce in obedience to the law
of its existence. seeks every field open to it.,
bringing its advantages and blessings alike to
all within its reach who bear to it like relations.
These laws of commerce the sections in ques-
ton apply to persons engaged in interstate
transportation.
THE GRANT OF POWER TO REGULATE COMMERCE
AMONG THE STATES
Passing now from the construction and inter
| probation of the sections in question. we come
to the cons 'dcration ofa graver subject. Do the
sections considered lie within the domain of
national legis ation9 Does control over inter
state transportation and of the companies and
property engaged therein, fall within the grant
of power to regulate commerce among the
States?'
Two schools of statesmen, from the date of
the formation of the Federal Constitution
down to the time of the civil war, held
radically different views as to its construction.
One school contended for a strict and limited
construction of all the clauses of the Federal
Constitution granting power to the various de-
partments of the General Government and
| maintained that every act of either department
must find express sanction in the words of the
Constitution, and that if such sanction could not
be found in the express language, or absolutely
| necessary implication thereof, the power was
| one which could not be exercised, but was re-
| served to the States orto the people.
| The other school maintained that the Consti-
| tuition should be literally interpreted; that it
had been formed to promote the general well
fare, and that in addition to the express grants
of power there were certain grants which fol-
lowed by Implication, and that all power to pro-
eI.r
pressly prohibited Neither of these schools, we
| think. would thirty years ago have maintained
that there lurked under the grant 'sto regulate
. commerce among the States an implied grant
broad enough to warrant Congress in enaoting
! the sections in question. A broad distinction
| would have been drawn between commerce and
| transportation. Commerce would have been
/, held to be the interchange or mutual change of
goods productions or property of any kind be-
| tween nations and individuals, and transporta-
| tion to be the means by which commerce is car
| ried on the former to have been under the ju-
risdiction OF the General Government, and the
latter, so far as exercised within the limits of
State. together with all the property and rights
| connected Herewith, under the jurisdiction and
| control of the State.
! We all remember when it was proposed In
Congress to appropriate money for the purpose
OF constructing postal and military road from
Chesapeake bay to the Mississippi river, what a
wealth of learning exhibited in the discus
| sion of the jurisdiction of Congress over the
| subject matter and with what vehemence the
proposal was assailed by those who contended
for limited construction of the Federal consti-
tuition. 1t was claimed that such an Act, If
passed, would be the entering wedge to the de-
struction of the rights which has been reserved
to the people and to the States, and that but lit
/ tie time would elapse until the Federal Govern
ment would seize all the powers which the peo-
| pie had conferred both upon State and Federal
| Governments, and relegate the respective States
from their sovereign position to condition Of
mere dependencies of the National G Government.
For more than half century these rival
schools met in the halls OF Congress and at the